State v. McKinzy

NOT DESIGNATED FOR PUBLICATION
Nos. 121,464
121,465
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DOMONIC RAY LEE MCKINZY SR.,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed October 1,
2021. Reversed and remanded with directions.
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Kayla L. Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and WARNER, JJ.
PER CURIAM: Under Kansas law, any conviction that a defendant has before
sentencing is counted in determining that defendant's criminal history score, unless that
conviction is another count in the same case. This means that if a defendant pleads guilty
to two crimes on the same day in two separate cases, the conviction in each case counts
against the other case as a prior conviction. This is because both convictions have
occurred before sentencing in each case. As we stated, any conviction that a defendant
has before sentencing is counted in determining that defendant's criminal history score.
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Does a defense attorney's failure to know of this longstanding sentencing rule and failure
to tell the defendant of the sentencing consequences of pleading guilty to two
unconsolidated felonies show lackluster advocacy that calls for the withdrawal of a
defendant's guilty plea?
As a result of plea negotiations, the defendant, on the same day, pled guilty to two serious
crimes charged in separate cases.
The State charged Domonic Ray Lee McKinzy Sr. with one count of first-degree
murder for the stabbing death of his mother's husband. While he was in the Wyandotte
County Detention Center awaiting trial on that charge, McKinzy fought with a deputy,
who was searching his cell. The deputy was injured, and the State charged McKinzy in a
separate case with aggravated battery of a law enforcement officer.
The district court appointed the same attorney to represent McKinzy in both cases.
The parties, later, negotiated a plea agreement. Under that agreement, McKinzy would
plead guilty to a reduced charge of one count of second-degree murder and one count of
aggravated battery of a law enforcement officer. The agreement allowed McKinzy to
argue for a durational departure and concurrent sentences. The agreement did not address
McKinzy's criminal history score.
At the plea hearing the court told McKinzy about the maximum sentence he could
receive: if his criminal history score was A—the highest category—he could face 653
months in prison for the murder charge and 247 months in prison for the battery charge.
McKinzy's attorney stated that those were the sentences "if you were an A, but you're
not." The State said that it thought McKinzy's criminal history would be C in the second-
degree murder case and B in the aggravated battery case, since his murder conviction
would count towards his criminal history in the battery case. The court explained what
that meant to McKinzy and then accepted his guilty pleas in both cases.
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Defense counsel, unaware of the sentencing rule about pleading guilty to two crimes in
separate cases on the same day, learns of his lack of knowledge, realizes that he had
failed to fully advise his client, and asks the court to allow the defendant to withdraw his
pleas.
When the presentence investigation reports in both cases were filed, they classified
McKinzy's criminal history score as B in each case. This is because under our state's
sentencing guidelines, multiple convictions on the same day in different cases count
against each other for criminal history purposes at sentencing. See K.S.A. 2020 Supp. 21-
6810(a), which defines a prior conviction for criminal history purposes as "any
conviction, other than another count in the current case . . . which occurred prior to
sentencing in the current case, regardless of whether the offense . . . occurred before or
after the current offense or the conviction in the current case." So McKinzy's plea to
second-degree murder counted against his criminal history in the aggravated battery case
and McKinzy's plea in the aggravated battery case counted against his criminal history in
the second-degree murder case.
This change of criminal history score upended McKinzy's possible sentences. For
a severity level 1 felony such as second-degree murder, the difference between a criminal
history score of C and B is substantial. A defendant with a score of C can receive a
sentence between 258 and 285 months in prison. But a defendant with a criminal history
score of B could receive a sentence between 554 and 618 months in prison. See K.S.A.
2017 Supp. 21-6804. That is a difference of 296 to 333 months between the two
sentences based on a B criminal history score.
The night before the sentencing hearing, McKinzy's attorney filed identical
motions to withdraw McKinzy's pleas in both cases. According to the motions, the
attorney had told McKinzy that he would be classified as a C in the second-degree
murder case and a B in the aggravated battery case because he had not thought that the
separate cases would be counted against each other for criminal history purposes.
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When the district court heard the motions, McKinzy's attorney explained he had
advised his client that his criminal history would be C for the second-degree murder
conviction and B for the aggravated battery conviction because he was "not thinking
about the consequences . . . for the criminal history [of] the two cases crossing each
other." The State responded that a defendant's failure to know their criminal history is not
grounds for setting aside a plea. The State acknowledged that it had misspoken at the plea
hearing—when it had said that it expected McKinzy's criminal history to be C in the
murder case and B in the battery case. The State had later sent McKinzy's attorney a letter
saying that McKinzy's criminal history would be B in both cases if he accepted the plea
offer.
After denying both motions to withdraw his pleas, the court sentenced McKinzy to
618 months in prison for second-degree murder and a concurrent sentence of 216 months
for aggravated battery of a law enforcement officer.
To us, McKinzy appeals the denial of his motions to withdraw his pleas. He argues
that the district court abused its discretion because no evidence supported its conclusions,
and it applied the wrong law. He also argues that the Kansas sentencing guidelines
violate his state and federal constitutional rights because they allow judicial fact-finding
of prior convictions, and those convictions enhance a defendant's sentence.
We will not address his second argument because the Kansas Supreme Court has
recently rejected it, and we are bound by that court's decisions. See State v. Albano, 313
Kan. 638, 487 P.3d 750 (2021).
The law gives district courts the discretion to set aside a guilty plea at the
defendant's request. K.S.A. 2020 Supp. 22-3210(d). Before sentencing, the defendant
need show only "good cause." In turn, we review the district court's denial of such a
request for an abuse of discretion. State v. Herring, 312 Kan. 192, 198, 474 P.3d 2854
(2020). That means we would reverse only if the district court made a legal or factual
error or if its decision was arbitrary or unreasonable. State v. Ingham, 308 Kan. 1466,
1469, 430 P.3d 931 (2018).
When courts consider whether a defendant has shown good cause or manifest
injustice, they generally rely on the three factors:
• whether the defendant was represented by competent counsel;
• whether the defendant was misled, coerced, mistreated, or unfairly taken
advantage of; and
• whether the plea was fairly and understandingly made.
See State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), where the court applied those
factors to a presentence motion to withdraw plea.
If the defendant moved to withdraw the plea before sentencing, then mere
lackluster advocacy may be plenty to support the first Edgar factor and thus statutory
good cause for presentence withdrawal of a plea. See State v. Aguilar, 290 Kan. 506, 513,
231 P.3d 563 (2010). But that term, "lackluster advocacy" is not very precise. It is better
understood if the context of its creation is given.
We note that the Aguilar court begins by referring to the Edgar factors and
explains why there are two levels of proof.
"Although the Edgar factors permit counsel's competence or lack thereof to be one
consideration when the motion is filed in the time period between conviction and
sentencing, they should not be mechanically applied to demand that a
defendant demonstrate ineffective assistance arising to the level of a violation of the
Sixth Amendment. That level of proof may be suitable when the vehicle for relief is
a K.S.A. 60-1507 motion attacking a defendant's sentence; and it may be logical and fair
to equate the K.S.A. 22-3210(d) manifest injustice standard governing a post-sentence
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plea withdrawal motion to the high burden imposed on a constitutional claim of
ineffective assistance." Aguilar, 290 Kan. at 512-13.
The court moves on then, to examine the statute and explains that the burden on a
presentencing motion to withdraw a plea is not high because it is a matter of discretion.
"We note, however, that the plain language of the statute—'for good cause shown and
within the discretion of the court'—should not be ignored. A district court has no
discretion to fail to remedy a constitutional violation.
"It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause
standard governing a presentence plea withdrawal motion to the high constitutional
burden. The Edgar factors do not transform the lower good cause standard of the statute's
plain language into a constitutional gauntlet. Merely lackluster advocacy—or, as here,
evidence of an insurmountable conflict of interest among jointly represented
codefendants that is ignored by a district judge—may be plenty to support the
first Edgar factor and thus statutory good cause for presentence withdrawal of a plea. All
of the Edgar factors need not apply in a defendant's favor in every case, and other factors
may be duly considered in the district judge's discretionary decision on the existence or
nonexistence of good cause." 290 Kan. at 513.
We think the district court here turned the plain language of the statute into a
constitutional gauntlet.
This record shows that the defense counsel's performance can be fairly
characterized as "lackluster" advocacy. This was not simply a case of miscalculating a
criminal history score. McKinzy's attorney represented him while pleading to two high-
level felonies, and the attorney did not know, let alone understand, that multiple
convictions on the same day in different cases count against each other for criminal
history purposes. And, more importantly, failed to inform McKinzy of this very
important sentencing rule before entering pleas of guilty.
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That has long been the rule in Kansas. See, e.g., K.S.A. 1994 Supp. 21-4710(a),
which stated that a "prior conviction" includes multiple convictions entered on the same
date in different cases for sentencing purposes for any of those convictions; State v.
Roderick, 259 Kan. 107, 116, 911 P.2d 159 (1996); see State v. Schow, 287 Kan. 529,
544, 197 P.3d 825 (2008). Schow held that a miscalculated criminal history score
potentially resulting from counsel's "failure to know or apply the current sentencing
guidelines" challenged the attorney's competence under the first Edgar factor. Schow, 287
Kan. at 544.
The lack of knowledge of fundamental sentencing law and the resulting
misunderstanding caused McKinzy's attorney to tell his client that he faced a far shorter
prison term for a guilty plea than he really did. That was the real error here. McKinzy
then pleaded guilty. Those circumstances raise a question about whether McKinzy's
attorney provided competent representation.
The defense attorney told the court about his errors. We compliment his candor to
the tribunal. But the court appears to have misunderstood what to do with the attorney's
admissions. It appears to have ignored those admissions and focused on what McKinzy
had said and not what his attorney said.
The court began its ruling on McKinzy's plea withdrawal motions by
acknowledging that it needed to address the Edgar factors. On the first factor—whether
the defendant was represented by competent counsel—the court said that it did not
"believe there is any allegation of ineffective assistance of counsel." This conclusion
ignores the defense counsel's admissions of error.
The State then interjected that it had found a relevant case, Ridley v. State, No.
98,853, 2008 WL 4416072 (Kan. App. 2008) (unpublished opinion). The State recited the
following paragraph of that case that explains step two of the ineffective assistance of
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counsel test found in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984):
"Even if we were to conclude that Ridley's counsel was deficient for failing to
investigate and reconcile the differing criminal history scores, Ridley's ineffective
assistance of counsel claim nevertheless would fail because he cannot establish that
counsel's deficient performance prejudiced his defense. This requires a showing that but
for counsel's erroneous advice, Ridley would not have pled guilty and would have
insisted on going to trial. [Citation omitted.]" Ridley, 2008 WL 4416072, at *3.
The court then continued analyzing the first Edgar factor, finding that McKinzy's
attorney had provided competent representation and again stating that McKinzy had not
alleged otherwise:
"THE COURT: Okay. Thank you for finding that case for me. And, you know,
the factors of Edgar whether the defendant was represented by competent counsel, there's
no allegation [the attorney] has been incompetent. Mr. McKinzy has made no such
allegation. I will note both docket sheets [the attorney] has had the defendant evaluated
for competency, has had the defendant evaluated for mental deficiencies and I know there
was a—a long history of continuing so that the parties could—could work on a plea
agreement. So I do not find that the fact that the defendant's criminal history was
miscalculated, I can't find that he was not represented by competent counsel."
The court then addressed the other two Edgar factors and found that McKinzy had not
met them. Finally, the district court said that, based on the evidence before the court, it
could not "find that the defendant would have gone to trial despite knowing whether he
was a B or a C," and it denied the motions.
We have two problems with the district court's ruling. The first is it ignored the
defense attorney's admission of incompetence. The second problem is that the court used
an incorrect test for a presentence motion to withdraw a plea. When a defendant moves to
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withdraw his or her plea after sentencing, the defendant must show manifest injustice.
This means then the defendant must meet the stricter standard for constitutionally
ineffective assistance from Strickland, 466 U.S. at 687. See State v. Bricker, 292 Kan.
239, 245, 252 P.3d 118 (2011).
Under that test, a defendant must show that
• the attorney's performance fell below the objective standard of
reasonableness; and
• there is a reasonable probability that but for the attorney's errors, the result
of the proceeding would have been different.
Bricker, 292 Kan. at 245-46.
But we emphasize that rule does not apply here.
In the context of a plea withdrawal, a different result generally means that the
defendant would not have pleaded guilty or no contest and would have instead proceeded
to trial. Bricker, 292 Kan. at 252.
A judicial action constitutes an abuse of discretion if it turns on an error of law or
an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). Here,
because we have found both an error of law and an error of fact, we hold that the district
court abused its discretion in denying McKinzy's motions to withdraw his pleas. We
reverse the denial of his motions and remand both cases for further proceedings.
Because of the attorney's admissions here, we hold that upon remand a different,
conflict-free counsel should be appointed to represent McKinzy. We recognize that
McKinzy may not wish to pursue the withdrawal of his pleas at that time but that is
something that must be decided in the district court.
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Reversed and remanded with directions.
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